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Submission in Review Hearing of SWE decision to sanction social worker for gender critical views

Opening submissions on behalf of Rachel MEADE at the Fitness to Practice Hearing 17-21 October 2022

FTPS 17602

Introduction and summary

1. A chronology of relevant events and explanatory background to the debate around issues of sex and gender are set out as Appendices 1 and 2 of these submissions, if of assistance to the Adjudicators.

2. RM accepts she published the material complained about to her private Facebook page in the time frame noted. The issue for the adjudicators is whether these publications are so offensive that they support a finding of misconduct and impairment. RM has set out a detailed rebuttal of the criticisms of her posts in her statement of case which will not be repeated here.

3. It submitted that there are no rational or reasonable arguments before the Adjudicators to permit a finding that RM’s fitness to practice was or is impaired by reason of misconduct.

4. Rather, regulatory action appears to have been based on a settled view that being ‘gender critical’ – i.e., disagreement with the substitution of the protected characteristic of sex for a subjective ‘gender identity’ - is inherentlybigoted, discriminatory, and offensive. Such a position is not sustainable by reliance on fact or law.

5. It is submitted that this alleged settled view has inevitably impacted upon the approach of the case examiners. The Adjudicators will need to treat their findings with care, within the correct legal framework and subject to the overarching requirement of proportionality.

6. Further, the approach of SWE to issues around sex and gender identity risks a dangerous fetter on the safeguarding obligations of social workers who mustchallenge ideas which gain currency in social work or other professions, but which may lack a compelling evidence base and be actively harmful.

7. RM has been subject to disciplinary proceedings in one shape or form since November 2020 – see para 34 onwards of her statement of case. The initial case examiners’ decision of July 2021 had to be amended due to potential defamation of a third party. The decision to apply a sanction to RM remained available online until June 2022 despite her successful request for a review, RM was suspended from employment between June 2021 and July 2022 andhas spent £15K of her own money to defend herself. She has made application to the Employment Tribunal alleging discrimination and harassment.

8. This process has been unnecessarily punitive and unfair and based on an erroneous understanding of existing law. It is submitted that SWE need to urgently reflect on the process it has endorsed here, to avoid repetition of what has not merely been damaging to the reputation and emotional well-being of an individual social worker, but potentially risks wider harm to the profession and to vulnerable service users.

The purpose of regulation and the role of the case examiners

9. It is accepted that the over-arching purpose of regulation of any profession is to protect the public. It is legitimate for regulators to examine registrants’ behaviour to determine if they have or are likely to put the public or the profession’s reputation at risk

10. SWE case examiners apply the ‘realistic prospect’ test to consider whether:

a. the facts alleged could be found proven by adjudicators

b. adjudicators could find that one of statutory grounds for impairment is engaged

c. adjudicators could find the social worker's fitness to practise is currently impaired

11. The case examiners are independent decision makers, and their decisions must not be influenced, obstructed, or otherwise interfered with by Social Work England. However, case examiners are not lawyers, and they are guided by the relevant legal advice provided by SWE.

12. It is accepted that case examiners review cases on the papers only and do not test evidence via cross examination. However, it is incumbent on them to consider all the written evidence carefully.

13. The case examiners initially determined that RM’s fitness to practice was impaired and recommended a sanction of one year. RM initially accepted this but then withdrew her agreement and sought a review following consideration of the decision of the Employment Appeal Tribunal in Forstater. On review in January 2022 the case examiners decided that it was necessary to hold thispublic hearing given that RM has rejected their original decision and the basis for it.

14. RM has set out in detail in her statement of case why she originally accepted the sanction and why she later decided to challenge it. This will not be repeated here.

The activities of RM

15. RM published various blogs, articles, and cartoons to her private Facebook page, visible only to confirmed ‘friends’ – some 40 in number and the complainant among them. The chances that a service user would be able to view her posts must be vanishingly small. Short of RM giving up her log in details to a third party, it is not clear how any member of the public could access a private Facebook page.

16. The complainant was the only person to complain about RM. The wider public only became aware of her views because the complainant sought to put them in the public domain via the mechanism of regulatory action, no doubt to humiliate RM and send a chilling message to any other social worker who dared hold and express ‘gender critical’ views.

17. However even if RM had posted on a public Facebook page, available via internet search engines, it is not accepted that her publications come anywhere close to the necessary threshold of conduct that is ‘disgraceful or ‘morally culpable’ (see para 35 below).

a. RM did not identify herself as a social worker

b. RM’s ‘gender critical’ views are widely shared including by some trans people (see Forstater EAT para 52)

c. That sex is binary and gender identity is a social construct is the current law (see Elan-Cane v Secretary of State for the Home Department[2018] 1 WLR 5119; Forstater EAT para 35)

d. There is ‘little in the way of expert evidence’ to support a contention that ‘biological opinion is increasingly moving away from an absolutist approach’ (see Forstater EAT para 87).

e. RM does not harass or target any individual

f. RM does not use aggressive or threatening language

g. RM does not use racist, profane, or sexually explicit language

h. RM does not provide comment on the articles/cartoons/blogs shared or attempt to engage others in conversation about them

i. RM is expressing her protected political belief within the context of political debate invited by the Government

j. A significant portion of RM’s postings are newspaper articles from the mainstream media – see para 52 below

k. There is no evidence that RM has ever been discriminatory or offensive to anyone in her practice. She is clear that she would respect individual trans people and treat them with dignity.

The correct legal framework

18. It is accepted that SWE pursues a legitimate aim in investigating the behaviour of registered social workers. However, both investigations and sanctions exist within the framework of existing law and safeguarding obligations.

19. It should be a matter of serious concern to individual social workers, the profession and the wider public, that political speech about a protected belief is asserted to be serious professional misconduct or somehow antithetical to the obligations upon social workers.

20. As was noted in Ngole -v- University of Sheffield [2019] EWCA Civ 1127, if it is claimed that there are certain views a social worker may never express, this assertion must be tested robustly, and any sanction applied must be proportionate.

21. This is not merely to keep the regulatory activities of SWE within the law, but to maintain the reputation of the profession and the ability of social workers to continue to act effectively to safeguard vulnerable people.

22. It is submitted that the case examiners have disabled themselves from properly or at all, examining the relevant issues in this case. They have operated from a false and discriminatory assumption that any expression of ‘gender critical’ views is necessarily an offensive attack on individual trans people.

23. It is submitted therefore the Adjudicators need to consider carefully

a. Article 10 ECHR

b. The Equality Act and protected belief

c. The Public Sector Equality Duty

d. Safeguarding obligations upon social workers

24. Freedom of expression is protected by Article 10 of the ECHR as one of the essential foundations of a democratic society – see Handyside v UK (1979-80) 1 EHRR 737 para 49. Restriction to this right is subject to a high test of proportionality. Pursuant to the Equality Act (EA) people must not be subject to unlawful discrimination or harassment for their protected belief.

25. The Adjudicators must also consider if SWE has met with its obligations under the Public Sector Equality Duty under the EA. Section 149 provides that a public authority in the exercise of its functions must have due regard to the need to eliminate discrimination, harassment, and victimisation and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

26. Social workers have an obligation to safeguard children and vulnerable adults.This requires the ability to challenge individuals and organisations fairly and robustly and to make decisions based on evidence. See the statements from Maggie Mellon and EBSWA.

27. There are sadly myriad examples of the potential for harm when social workers fail to robustly challenge a prevailing orthodoxy or find their safeguarding concerns unreasonably dismissed. For example:

a. the report of Lord Justice Butler Sloss on her inquiry into child abuse in Cleveland 6 July 1988 (HMSO, Cm 412).

b. the decision of the High Court Re J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

c. the decision in the Employment Tribunal regarding Sonia Appleby [June 2021 Case No: 2204772/2019] where hospital staff felt they were coerced into not reporting safeguarding issues around the medical transition of children, and to do so was considered ‘transphobic’.

Protecting the public from ‘offence’

28. The initial case examiners decision asserted that the social worker did the following: -

a. Used social media to share posts that were discriminatory in nature.

b. Signed petitions and donated funds to organisations that discriminate against specific groups.

c. Acted in a discriminatory manner.

29. It is of interest that the case examiners in the first investigation identified 4 posts that caused them significant concern. One of those related to false and potentially defamatory allegations made about Mr Graham Linehan by the complainant. This was withdrawn in August 2021 following complaint by Mr Linehan. It is submitted that this is an example of the dangers in simply accepting a complainant’s evidence at face value and has caused significant distress and offence to Mr Linehan, as he makes clear in his statement.

30. The allegation now put to RM is set out at para 1 of the SWE statement of case of July 2022: that her posts ‘may be considered offensive by others’ and have the potential to undermine public confidence in the profession. This amounts to a statutory ground of misconduct and RM’s fitness to practice is thus impaired.

31. ‘Offence is to be given its normal and natural meaning (para 16 SWE statement of case); one dictionary definition is rude in a way that causes you to feel upset, insulted, or annoyed.

32. ‘Offence’ necessarily operates on a spectrum; most people will be offended by some things. Some people will be very offended by a few things. That someone claims to be offended cannot be the beginning and end of any investigation into ‘offence’.

33. It is assumed that ‘being offensive’ as a regulated professional is a problem because if the level of offence is sufficiently serious, it may give rise to a legitimate concern that the professional cannot do his or her job properly, for example, would discriminate against a person who shared the characteristicsor beliefs that it is alleged a social worker is being offensive about.

34. It is accepted that it is not possible to define exactly what constitutes professional misconduct – see Roylance v General Medical Council (No 2) [2000] 1 AC p330 – but it must cross a threshold of sufficient seriousness:

It is not any professional misconduct which would qualify. The professional misconduct must be serious.

35. The SWE case examiners accept this basic proposition asserting that misconduct is either serious within the professional practice or (p10)

Conduct of a morally culpable or other disgraceful kind which may occur outside the course of professional practice but could bring disgrace on the reputation of the profession

And (p13)

The alleged conduct represents a significant departure from professional standards.

36. It appears that the charges against RM may have changed in response to the EAT decision in Forstater and hence an appreciation that it is difficult to proveunacceptable discrimination or the risk of it, against someone who is doing no more than expressing a protected belief and in the absence of evidence of actual discriminatory practice (see Ngole).

37. However, the focus by SWE on ‘offence’ rather than ‘discrimination’ does not remove the obligation to examine RM’s behaviour within existing legal frameworks to protect due process, freedom of expression and its manifestation.

38. Not merely must the ‘offence’ cross a threshold of seriousness, there must be sufficiently robust analysis of the likely impact of the offence against the rights impacted if a regulatory sanction is applied. To fail to carry out a proper balancing exercise to test the proportionality of any sanction which impacts upon an Article 10 right is unlawful; see Miller v College of Policing [2020] EWHC 225; Jon Holbrook and the BSB Case No: 2021/4441; Ngole -v- University of Sheffield [2019] EWCA Civ 1127.

39. It is submitted that the SWE case examiners have been led into serious error by failing to carry out any or any sufficient balancing exercise of the risk of the harm and the rights impacted.

40. They adopted at the outset a view that:

a. RM has endorsed criticism and satire against individuals who are trans rather than of a political ideology and its implications; and/or

b. Regardless of how they are expressed, her views regarding sex and gender are inherently ‘morally culpable’.

Misunderstanding of the law by SWE

41. The case examiners should have been advised as to the law by SWE. However, there is concerning evidence that SWE rely on very serious misunderstanding of the law, which must necessarily have infected the advice it has given its case examiners.

42. Note for example para 69 of the SWE statement of case of 6th July 2022 which asserts

those who hold or espouse gender critical beliefs, generally speaking, are unlikely to accept that transgender people who have socially and/or medically transitioned from one sex to another, are as matter of fact, biology and reality members of their chosen sex (emphasis added)

43. It is submitted that this is a remarkable assertion from a regulator. It is a demonstrably false statement and has no support in either fact or law. It cannot survive even a cursory examination of the interaction of the GRA and the EA which both set out that the legal fiction that a person can be treated as the opposite sex is disapplied in several instances.

44. Even those with a GRC may find themselves lawfully excluded from a single sex space if for a legitimate and proportionate aim. Those without a GRC will simply be treated as the sex they were born, where sex is a relevant consideration.

45. Those contemplating gender reassignment are protected against unlawful discrimination or harassment but this cannot possibly support an assertion that transgender people have ‘changed sex’ as a matter of biological material reality.

46. This is explained by the EAT in Forstater which makes it more remarkable that in July 2022 SWE’s understanding of the relevant law can be so seriously deficient. See:

a. Para 35 Even the operation of the GRA recognises that sex is immutable: see e.g., Sch 3, para 24 to the EqA which provides that even where a person has a GRC, another person may lawfully refuse to validate a marriage if they hold a religious belief that sex is immutable

b. Para 94: The GRA provides for certain exceptions where, as a matter of law, a person’s gender is not the acquired gender. For example,section 12 provides that a person’s gender has become the acquired gender does not affect the status of that person as the father or mother or the child.

c. Para 96: cites with approval R (McConnell) v Registrar General for England and Wales (AIRE Centre Intervening) [2020] 3 WLR 683 where the Court of Appeal stated …the general effect of section 9(1) of the GRA is displaced to the extent that an exception to it applies’

d. Para 97: Although section 9 GRA refers to a person becoming ‘for all purposes’ the acquired gender, it is clear from these references in the House of Lords and the Court of Appeal that this means for all ‘legal purposes

47. It is submitted that this significantly erroneous belief of SWE that the GRA works some kind of magic to change ‘biological sex’ rather than establish a legal fiction to which exceptions apply, poses very serious risks to the social work profession and service users.

48. For example, if social workers are wrongly told that transgender people can change their biological sex and it is ‘transphobic’ to say anything else, there is a risk that social workers may feel they cannot challenge a child’s erroneous belief that there is some kind of medical or surgical intervention by which he or she will ‘change sex’, rather than their outward gender expression or their secondary sex characteristics, for example by surgical removal of their genitals. There is currently no medical or surgical intervention that allows any person to take on the reproductive role of the opposite sex and this must be made clear to all people contemplating medical or surgical transition so that their consent is informed.

49. It is submitted that SWE need to reflect urgently on the quality of its understanding of existing law and the advice it gives as there is a risk that SWE’s misstatement of the law has provided an impetus for the case examiners to see RM’s rejection of their views as particularly ‘morally culpable’.

50. For example, at para 73 of the SWE statement of case highlights as a negative that RM’s posts:

consistently argue for, amongst other things, the exclusion of transwomen from single sex spaces, the rejection of self-identification under the TRA and the limitation, reduction or prohibition on medical treatment (such as puberty blockers) for gender dysphoria in children

51. It is submitted that it cannot be rational or proportionate to assert a social worker is not fit to practice, for holding and expressing views which are supported by the existing legislation and the EHRC or which are reported in mainstream media, itself subject to significant regulation.

52. For example, 28% of RM’s publications identified by Ms Samra, emanated from the mainstream media. See Appendix 3 Documents attached to statement of Sahiba Samra July 15 – origin of posts published by RM on Facebook.

53. Nor is it rational or proportionate to suggest that a social worker is ‘morally culpable’ by sharing articles, blogs, or cartoons from a wider range of resources which offer critical or satirical comment about the possible harmful consequences of ‘self-identification’.

54. Futher, concerns about the medical transition of children and its poor evidence base have been vindicated by the interim report of the Cass Review and the subsequent closure of the Tavistock GIDS.

55. The danger posed to children by predatory men is beyond doubt. Social workers must be empowered to challenge any claimed ‘identity’ that might pose a safeguarding risk.

56. It is submitted that the approach of SWE and the case examiners to RM is a manifestation of what was noted by Mr Justice Knowles in 2020 as a particularly sad feature of the current state of debate; many who support ‘trans rights’ refuse to accept any challenge or criticism to belief in ‘gender identity’, rejecting it without analysis as ‘transphobia’. See para 250 of the judgment in Miller v College of Policing [2020] EWHC 225 (Admin) when considering the evidence of Professor Stock.

… there is a vigorous ongoing debate about trans rights. Professor Stock’s evidence shows that some involved in the debate are readily willing to label those with different viewpoints as ‘transphobic’ or as displaying ‘hatred’ when they are not. It is clear that there are those on one side of the debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice, or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research.

The motivations of the complainant

57. The case examiners have offered no consideration whatsoever of the motivations and actions of the complainant, allowing the risk of a ‘heckler’s veto’ to operate and thus a disproportionate breach of RM’s Article 10 rights.

58. The case examiners raise the following concerns about RM’s publications:

Case examiners are of the opinion that not only those from the transgender community, but others, would have concerns about the social worker’s ability to act in an anti-oppressive manner which values the diverse lived experience of others.

59. If this is held to apply to RM, then it must apply with equal force to the public pronouncements of the complainant who frequently uses his public Twitter account to make or endorse comments which are accusatory and rude towards others who do not share his views. It is submitted there is a risk this would lead members of the public to believe that he would not be fair or polite to service users who disagreed with him.

60. The case examiners repeatedly refer to the complainant as a ‘member of the public’. However, even a cursory examination of his public Twitter account would demonstrate that he was not complaining simply as a disinterested‘member of the public’ but as a registered social worker with an explicitlypublic stated interest in promoting and asserting the primacy of gender identity over the material reality of sex.

61. RM is criticised for her lack of ‘balance’ in her posts; there is no attempt by the complainant to ‘balance’ his support for gender ideology against any recognition that others may have different views. This goes entirely unremarked by the case examiners.

62. The suggestion of the case examiners that RM should have ‘engaged’ with the complainant is naïve and inappropriate given his views and the way he expresses them and underscores that they have failed to give any proper consideration to the complainant’s own obvious bias and prejudice towards RM’s protected belief. This risks a perception that the case examiners endorse discrimination against someone with a protected belief.

63. RM accepts that the complainant has a right to express his views as an identifiable social worker, provided that his publications do not cross the threshold of serious offence. However, she poses the question why XX’s continuing behaviour is of apparently no interest to his regulator, given its public and offensive nature, while hers has been subject to intense scrutiny and public criticism.

64. It is submitted that there is a clear risk here of bias and discrimination on the part of the case examiners towards those with ‘gender critical views’. The question then inevitably follows; to what extent have SWE provided its case examiners with accurate and fair advice about the law in this area?

Conclusion

65. For all these reasons as set out above, it is submitted that the sanction initially imposed on RM cannot be justified in fact or law. It is disproportionate,irrational and risks being considered unlawful discrimination against a protected belief. Any further sanction would be similarly disproportionate and unfairly punitive.

66. It is accepted that the debate and discussions around issues of sex and gender can often be polarised and heated and may cause offence and distress. But that cannot be a justification to simply silence one side of that discussion, instead of considering ways in which the discussions may be properly managed.

67. As the EAT in Forstater commented at para 86, referring to the case of Bessarabia, the State (here represented by SWE) must remain neutral; its role is ‘not to remove the cause of tensions by doing away with pluralism, but to ensure that groups opposed to one another tolerate each other.’

Sarah Phillimore

Counsel for the Registrant Rachel Meade

Instructed via Direct Access

St Johns Chambers

September 23 2022

APPENDIX 1 – CHRONOLOGY

Date

Event

April 2013

XX joins Twitter with public account

2014

Complainant and RM become ‘friends’ on Facebook

2015

XX alleges disturbing incident during night out with RM who was offensive about trans people. Makes no complaint at the time. RM denies this incident occurs.

Nov 2019

‘Gender critical’ belief declared ‘not worthy of respect in a democratic society by the ET and therefore not protected by the Equality Act

15 June 2020

Complaint made by XX to SWE

17 June 2020

XX attempts to engage RM in conversation on social media about her views in an aggressive manner

Nov 2020

SWE investigation commences; RM notified by email

06.06.21

Judgment of the EAT in Forstater confirming that gender critical belief is protected under the Equality Act

08.07.21

Decision in FTPS-17602 made by case examiners Heather Martin (Lay) and Graham Noyce (Professional case examiner).

22.07.21

WCC suspends RM from work and begins disciplinary proceedings

06.08.21

RM writes to SWE asking them to consider an early review of the decision of July

25.08.21

The case examiners amend their decision, removing potential defamation of GL but were unaware that RM had withdrawn her consent to the sanction and requested a review. Article in Community Care by Thomas Smith. ‘Regulator calls for debate on social media use after warning social worker for anti-trans posts.- Social Work England defends commitment to human rights and impartiality following online controversy over Fitness to practice investigation

24.11.21

ACAS notified

Dec 2021

Case examiners ask to be removed from the case due to on-going conflicts of interest due to ‘misinformation’ and ‘misrepresentation’ arising from public blogs and discussion threads concerning RM’s case which they felt could affect their objectivity and employment.

14.12.21

SWE agree to review decision

06.01.22

WCC disciplinary hearing – postponed due to SWE re-opening process Case examiners requested to remain involved by SWE Head of Adjudications

07.01.22

RM issues claim in employment tribunal re harassment and discrimination

28.01.22

Case examiners review August 2021 decision and decide it is in the public interest for the matter to go to public hearing

Feb 2022

Case decision and public sanction were removed from SWE public register in February 2022 and the process of engaging in an FTP hearing was commenced.

Feb 2022

WCC, indicate it has reviewed all the evidence gathered by SWE and report, that in the light of Forstater it is unable to conclude that the majority of RM’s posts on Facebook amount to unlawful discrimination and gross misconduct with WCC’s disciplinary policy. However, 4 remain of concern. A two-year sanction is later imposed based on only 2.

01.03.22

EHRC reject referral from RM solicitors re discrimination case but would be interested in knowing how claim progresses

March 2022

RM undertook a Westminster Adult Education Service online course QCF level 2- Understanding Children and Young Peoples Mental health

29.03.22

Preliminary hearing at Central London Employment Tribunal; RM brings claims against WCC and SWE in harassment, direct or indirect discrimination. SWE wishes to stay these proceedings until the conclusion of the FTP hearing

April 2022

Revised guidance from the EHRC to re-affirm the legitimacy of single female sex services and provision.

June 2022

RM discovers that SWE’s full case management decision with sanction was still available online via a google search. WCC conclude that this means RM continued to bring WCC into disrepute.

28.06.22

WCC disciplinary hearing rescheduled to this date

30.06.22

Case management directions in FTP hearing

July 2022

RM returns to work with two-year sanction SWE finally remove decision and sanction from the internet SWE statement of case 6th July

15.09.22

RM response to SWE allegations

17-21.10.22

FTP hearing

Dec 2022

ET hearing listed

APPENDIX 2 – BACKGROUND

National discussion around issue of sex and gender

1. A national discussion about the legal protection offered to objective biological sex and claimed subjective ‘gender identity’ was prompted by the Government consultation process on reform to the Gender Recognition Act (GRA) in 2018.

2. The GRA allows adults to apply for a ‘gender recognition certificate’ (GRC) which allows people legal recognition in some circumstances as the opposite sex to that which was recorded at their birth.

3. Such people fall under a broad umbrella term of ‘trans’ i.e., their claimed ‘gender identity’ does not align with their biological sex and this may cause significant emotional distress for some, known as ‘gender dysphoria’.

4. The existing legal landscape is often misunderstood or deliberately misinterpreted. It clear that significant confusion over recent years has arisen over

a. the interplay between the GRA and the Equality Act (EA)

b. the extent to which, men who assert they are women, can gain access to single sex female spaces, and

c. what, if any, legal process should be in place to enable someone to identify as the opposite sex.

5. Children are not covered by the GRA. The GRA also contains severalexceptions where the new ‘acquired gender’ may be lawfully rejected. For example, section 19 covers sports; it is lawful to prohibit participation by holders of a GRC if this is necessary to ensure fair competition or the safety of competitors. This has now been replaced by the single sex provisions in the Equality Act 2010.

6. Further, recent guidance of the Sports Council Equality Group acknowledges that people who have been through male puberty have lasting advantages over those who have not. This has impacted on the recent recommendations made by the governing bodies of swimming, cycling and rugby, to limit participation in female categories of those who have undergone male puberty.

7. In any event, ‘sex’ remains a protected characteristic pursuant to the Equality Act 2010 and those with a GRC may be lawfully excluded from a designated single sex service, if this is for a legitimate and proportionate aim [see Part 7 EA ‘ Separate and single services: separate services for the sexes’, and the April 2022 revised guidance from the EHRC Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions ]

8. A GRC does not - as SWE appear to think – bring about a change to ‘biological’ sex and it is absurd to suggest it does. Biological sex remains relevant, important, and protected in several different contexts, as discussed above.

9. Those who object to changes to the law to permit ‘self-identification’ of a gender identity, rather than by application and assessment, are described by the general term ‘gender critical’. Their concerns arise in two main areas

a. from the general umbrella term of ‘trans’, which is applied equally to those who may have undergone extensive surgery to alter their secondary sex characteristics or who may have made no modifications to their bodies whatsoever. Most males who identify as transgender women do not have surgery or take medication (statement of Dr Nicola Williams para 14). Those who are ‘gender critical’ consider that allowing male bodied people unfettered access into female spaces has the potential to impact negatively on the safety and dignity of women and girls who require recognition and protection because of their biological sex.

b. There is also significant concern about the impact on children who are ‘affirmed’ as ‘trans’ at a very early age, which has been evidenced in the High Court decision Bell v Tavistock, the commission of the Cass Review and its interim report, the subsequent closure of the Gender Identity Services (GIDS) at the Tavistock Hospital and the increasing numbers of vocal ‘de-transitioners’ who now regret the medical and surgical interventions offered to them, some of whom are seeking redress via the courts.

10. ‘Gender critical’ views are shared and expressed by a wide variety of people across the political spectrum, including trans and homosexual people, as the witness statements provided by RM show and confirmed by the decision of Forstater at the Employment Appeal Tribunal [judgment 10 June 2021 UKEAT/0105/20/JOJ]

11. It is now beyond doubt that ‘gender critical belief’ and its manifestation is protected pursuant to the Equality Act 2010 following this decision of the EAT, which overturned the unlawful previous determination of the Employment Tribunal in November 2019 [2200909/2019] and affirmed that ‘gender critical’ belief was ‘worthy of respect in a democratic society’.

12. Of course, not every manifestation of a protected belief can be permitted with impunity. The EAT in Forstater gave the example of ‘persistent and indiscriminate’ misgendering of a work colleague which was likely to be considered harassment by creating a hostile working environment. The Employment Tribunal decision in the case of Bailey [2022] Case No: 2202172/2020 illustrates further what manifestations of this belief may be permissible and included strong criticism of the lobby group Stonewall as ‘a protection racket’.

13. No doubt some would find it offensive; it is allowed to be said, even by a member of a regulated profession. Ms Bailey’s Chambers were found to have discriminated against her and victimised her for the manifestation of her protected belief.

14. While it may be that some people who call themselves ‘gender critical’ will have and express transphobic or homophobic views, that are not protected, it cannot be assumed that this is an inevitable by-product of gender critical views, particularly where challenge is directed to proposed reforms to the law, not to individuals who may consider themselves ‘trans’ or homosexual. It is also clear that a number of those who identify as ‘trans’ and/or homosexual share gender critical views.

APPENDIX 3

Documents attached to statement of Sahiba Samra July 15 2022 – origin of some of the posts published by RM on Facebook

A variety of sources indicates lively political debate. The largest group of posts (28%) identified by SS are from mainstream and regulated media.

71 posts.

37 different sources

20 in mainstream media 28%

11 FPFW 15%

9 WPUK 13%

The Times

SS11 SS12 SS15 SS30 SS41

The Telegraph

SS13 SS26 SS53 SS64

Daily Mail

SS17 SS24

The Scotsman

SS18

The Herald Scotland

SS47

The Times Higher Education

SS30

The Spectator

SS55 SS56 SS58

Sky News

SS61

The Guardian

SS62

The Economist

SS63

Morning Star

SS9

The Critic

SS10

Quilette

SS42 SS49

Spiked

SS43 SS48 SS59 SS68

Petition

SS1 SS3 SS5 SS20 SS25 SS40 SS65

Unherd

SS16

Fair Play for Women

SS4 SS19 SS21 SS22 SS27 SS36 SS37 SS51 SS52 SS57(guidance on responding to GRA consultation) SS67

WPUK

SS6 SS8 SS14 SS23 SS32 SS50 SS54 SS60 SS17

Transgender Trend/ SDA

SS35 SS38 SS65

FiLiA

SS70

Labour Women’s Declaration

SS7

Reporting on politician’s views

SS2

Weekly Wonder ?

SS28

Medium blogpost

SS29

Change.org inquiry

SS33

Citizen Go

SS34

Feminist Current

SS45

Make More Noise

SS39

The Federalist

SS69

Screen shot of playlist Omny ?

SS44

ABC Transgenderism

SS46

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